Arkansas Game & Fish Comm v. United States , 736 F.3d 1364 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
ARKANSAS GAME & FISH COMMISSION,
Plaintiff-Cross-Appellant,
v.
UNITED STATES,
Defendant-Appellant.
______________________
2009-5121, 2010-5029
______________________
Appeals from the United States Court of Federal
Claims in No. 05-CV-381, Judge Charles F. Lettow.
______________________
Decided: December 3, 2013
______________________
JAMES F. GOODHART, Arkansas Game & Fish Commis-
sion, of Little Rock, Arkansas, argued for plaintiff-cross
appellant. With him on the brief were JOHN P. MARKS, Of
counsel on the brief were JULIE D. GREATHOUSE,
MATTHEW N. MILLER, and KIMBERLY D. LOGUE, Perkins &
Trotter, PLLC, of Little Rock, Arkansas.
ROBERT J. LUNDMAN, Attorney, Environment & Natu-
ral Resources Division, United States Department of
Justice of Washington, DC, argued for defendant-
appellant. With him on the brief was IGNACIA S. MORENO,
Assistant Attorney General.
2 ARKANSAS GAME & FISH COMMISSION v. US
BRIAN T. HODGES, Pacific Legal Foundation, of Belle-
vue, Washington, and R.S. RADFORD, of Sacramento,
California, for amici curiae.
______________________
Before NEWMAN, BRYSON, and DYK, Circuit Judges.
BRYSON, Circuit Judge.
This case is before us on remand from the Supreme
Court. We previously held that plaintiff Arkansas Game
and Fish Commission failed to establish that increased
flooding of its property during the period 1993-2000
constituted a taking that is compensable under the Fifth
Amendment to the Constitution. Ark. Game & Fish
Comm’n v. United States, 637 F.3d 1366 (Fed. Cir. 2011).
The Supreme Court reversed, holding that government-
induced flooding can qualify as a Fifth Amendment taking
even if it is temporary in duration. Ark. Game & Fish
Comm’n v. United States, 133 S. Ct. 511 (2012). The
Court then remanded the case for us to determine wheth-
er the government’s actions at issue in this case gave rise
to a temporary taking, as found by the Court of Federal
Claims, and whether the judgment of that court should be
sustained. We now affirm the judgment of the Court of
Federal Claims.
I
The facts of this case have been recited in detail both
by this court and by the Court of Federal Claims, so we
will provide only a brief summary here. The Arkansas
Game and Fish Commission owns a large parcel of land
along the Black River in northeastern Arkansas known as
the Dave Donaldson Black River Wildlife Management
Area (“the Management Area”). The Commission uses the
Management Area as a wildlife and hunting preserve and
a timber resource. The dominant species of hardwood
trees in the bottomlands of the Management Area are
nuttall oaks, overcup oaks, and willow oaks. The Com-
ARKANSAS GAME & FISH COMMISSION v. US 3
mission engages in harvesting and reforestation to main-
tain a healthy regenerating forest in those bottomlands.
In the 1940s, the Army Corps of Engineers built a
dam on the Black River upstream of the Management
Area for flood control purposes. The water that accumu-
lated behind the dam became Clearwater Lake. In 1953,
the Corps of Engineers issued the Clearwater Lake Water
Control Manual, which set the policy for releasing water
from the dam into the Black River at various times during
the year. The Manual policy, which was designed to
mimic the natural flow of water in the Black River while
preventing severe floods, called for a rapid release of
water each spring, which produced short-term flooding in
low-lying areas along the river and in the Management
Area, but did not result in long-term flooding during the
April through October tree-growing season. Under the
Manual policy, floodwaters downstream of the dam gen-
erally receded by late May of each year, as had been the
case prior to the dam’s construction.
The 1953 water release policies resulted in a modest
increase in the average number of days during each year
that the Management Area was flooded, as compared with
the pre-dam period. However, the additional days of
flooding that occurred during the 40 years that the Man-
ual policy was in place did not result in long-term damage
to the timber in the Management Area. The evidence at
trial showed that the valuable trees in the Management
Area were able to withstand short periods of flooding
during the growing season, as long as there were no more
than two or three successive growing seasons in which
there were prolonged periods of flooding.
The Water Control Manual permitted the Corps of
Engineers to approve deviations from the normal pattern
of water release. Beginning in late 1993, the Corps ap-
proved a series of deviations in the prescribed water
levels from the normal standards authorized by the
4 ARKANSAS GAME & FISH COMMISSION v. US
Manual. The deviations were adopted in response to
requests from agricultural interests, which advocated
modifying the water release policies so as to provide
farmers in the flood-affected regions more time each year
to harvest their crops. The post-1993 deviations resulted
in an increase in the number of days that portions of the
Management Area were flooded during the growing
seasons from 1994 until 2000. 1
Starting in early 1996, Commission representatives
began complaining to the Corps of Engineers that the
flooding caused by the deviations was injuring some of the
valuable oak species in the Management Area. The Corps
of Engineers, however, continued to implement the new
policy on a yearly basis until 2000. In 1999 and 2000 the
area suffered a moderate drought. Following the drought,
Commission employees found that large numbers of the
most valuable trees in the Management Area were dead
or in degraded condition. The trial court concluded that
the flooding during the growing seasons between 1994
and 1998 had damaged the roots of the trees in the Man-
agement Area so that they were not able to withstand the
drought. Absent the root damage caused by the flooding,
the court found, the drought would not have had a detri-
mental effect on the forest.
In 1999 the Corps of Engineers proposed making the
interim deviations of the prior six years a permanent part
of the water control plan for Clearwater Dam. Upon
further objections by the Commission, however, the Corps
in April 2001 decided not to make the deviations perma-
nent but instead to end the deviations altogether. The
Corps confirmed that the Management Area would flood
1 Although there had been some previous deviations
from the 1953 policy, the evidence showed that those
deviations were for brief periods and were not detrimental
to the timber in the Management Area.
ARKANSAS GAME & FISH COMMISSION v. US 5
when the water level at the Corning, Arkansas, gauge on
the Black River reached six feet, which had occurred
frequently during the deviation period. In a news release,
the Corps explained that it was abandoning the plan to
make the deviations permanent because of concern for the
“potential for damage to the bottomland hardwoods in the
Dave Donaldson Black River Wildlife Management Area.”
The Commission brought this action in the Court of
Federal Claims, contending that the Corps’ water release
practices between 1993 and 2000 constituted a compensa-
ble Fifth Amendment taking. In a comprehensive opin-
ion, the Court of Federal Claims held that by
implementing the deviations from 1993 through 2000, the
government had taken a temporary flowage easement
over the Management Area, resulting in the destruction of
a substantial amount of valuable timber. Ark. Game &
Fish Comm’n v. United States, 87 Fed. Cl. 594 (2009).
The court found that the extended periods of flooding in
the Management Area were foreseeable and were the
cause of the damage to the timber there. The court
awarded the Commission $5,602,329.56, the value of the
timber lost because of the excess flooding between 1993
and 2000. The court granted an additional $176,428.34 in
damages to pay for regeneration efforts in areas severely
affected by wetland plant species that had invaded the
area during the years of increased flooding, but it denied
the Commission’s request for a greater regeneration
award covering a larger portion of the Management Area.
This court reversed the Court of Federal Claims,
holding that the government’s actions did not constitute a
compensable taking. Ark. Game & Fish Comm’n v. Unit-
ed States, 637 F.3d 1366 (Fed. Cir. 2011). In so doing, we
relied on language in several Supreme Court cases sug-
gesting that temporary flooding does not constitute a
taking and that because the deviations were temporary in
nature, the flooding was not an “inevitably recurring”
event that would give rise to a takings remedy. We did
6 ARKANSAS GAME & FISH COMMISSION v. US
not reach any of the other issues raised by the parties,
including the Commission’s cross-appeal in which it
sought an increase in the award of regeneration damages.
The Supreme Court reversed this court, holding that
government-induced flooding can constitute a taking even
if it is temporary in duration. Ark. Game & Fish Comm’n
v. United States, 133 S. Ct. 511 (2012). Unlike permanent
physical takings, the Court explained, temporary inva-
sions “are subject to a more complex balancing process to
determine whether they are a taking.” Id. at 521, quoting
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 435 n.12 (1982). The Court remanded the case for
further proceedings, noting that the government had
challenged “several of the trial court’s factfindings, includ-
ing those relating to causation, foreseeability, substantial-
ity, and the amount of damages.” Id. at 522. The Court
added that those issues the government had previously
preserved for review in this court would remain open for
further consideration.
II
On remand, the government has raised several issues
that it raised in the previous appeal (and some that it did
not). We address the issues that the government has
preserved for appeal, but we decline to address those that
the government did not previously raise before the trial
court.
A. Duration
The government’s first argument on remand is that
the deviations that resulted in flooding the Management
Area were “temporary and ad hoc” and therefore did not
constitute a physical taking of the Commission’s property.
Given that the Supreme Court held that a physical taking
could result from flooding that is only temporary in na-
ture, the government’s argument is necessarily limited to
the contention that the flooding was not sufficient in
ARKANSAS GAME & FISH COMMISSION v. US 7
duration to constitute an appropriation of the Commis-
sion’s property rights. The trial court found to the contra-
ry, and we agree with the trial court that the assertedly
“temporary and ad hoc” nature of the deviations does not
defeat the Commission’s takings claim.
While it is true that each of the Corps-authorized
deviations was designated as temporary, the deviations
were renewed each year between 1993 and 2000. The
deviations were adopted in response to requests from
agricultural interests, which sought to have the pattern of
water releases from Clearwater Lake modified to increase
the length of the harvest season. The changes made in
the release patterns between 1993 and 2000 had the
intended effect of benefiting farmers in the area, but as
the trial court found, the change also resulted in a sub-
stantial increase in the number of days that the Manage-
ment Area was flooded during each growing season
during those years.
That period of flooding imposed a severe burden on
the Commission’s property. According to the trial court’s
findings, “the government’s superinduced flows so pro-
foundly disrupted certain regions of the Management
Area that the Commission could no longer use those
regions for their intended purposes, i.e., providing habitat
for wildlife and timber for harvest.” 87 Fed. Cl. at 620.
The government’s claim that each of the deviations
that the Corps of Engineers implemented during the
1990s was insufficient by itself to effect a taking ignores
that while the prescribed water levels varied slightly from
year to year, the deviations were directed to a single
purpose—to accommodate agricultural interests—and
had a consistent overall impact on the Management Area.
Thus, the government-authorized flooding of the Man-
agement Area is properly viewed as having lasted for
seven years, and the question whether the flooding consti-
tuted a compensable taking must be assessed in light of
8 ARKANSAS GAME & FISH COMMISSION v. US
an invasion of that duration. See Portsmouth Harbor
Land & Hotel Co. v. United States, 260 U.S. 327, 329-30
(1922); Hendler v. United States, 952 F.2d 1364, 1377
(Fed. Cir. 1991); Eyherabide v. United States, 345 F.2d
565, 569 (Ct. Cl. 1965) (“Isolated invasions, such as one or
two floodings or sprayings, do not make a taking, . . . but
repeated invasions of the same type have often been held
to result in an involuntary servitude.”). The government
cannot obtain an exemption from takings liability on the
ground that the series of interim deviations were adopted
on a year-by-year basis, rather than as part of a single
multi-year plan, when the deviations were designed to
serve a single purpose and collectively caused repeated
flooding and timber loss on the Commission’s property.
In its opinion in this case, the Supreme Court held
that the temporary nature of the flooding caused by the
deviations was not a valid ground for holding that a
taking did not occur. The Court was careful to make
clear, however, that not every act of government-induced
flooding constitutes a taking. The Court explained that in
the case of temporary flooding, as in other temporary
takings cases, the question whether a taking has occurred
does not turn solely on the duration of the invasion that
caused the injury in question. Instead, to determine
whether a taking has occurred, a court must consider
whether the injury was caused by authorized government
action, whether the injury was the foreseeable result of
that action, and whether the injury constituted a suffi-
ciently severe invasion that interfered with the landown-
er’s reasonable expectations as to the use of the land. 133
S. Ct. at 522-23. We address each of those issues sepa-
rately below.
B. Causation
The government contends that the Court of Federal
Claims erred in finding that the deviations of the 1990s
ARKANSAS GAME & FISH COMMISSION v. US 9
caused any significant increase in the burden of flooding
on the Commission’s property.
The government’s argument is in essence a challenge
to the factual findings of the trial court. The parties
offered competing evidence as to the issue of causation,
and the trial court explained in great detail why it found
the Commission’s evidence persuasive. While the evi-
dence on causation was conflicting, the trial court was
entitled to credit the Commission’s evidence and find that
the deviations of the 1990s caused a substantial increase
in the periods of flooding on the Management Area that
in turn led to the destruction of or damage to a large
number of trees in the bottomland hardwood forest there.
The evidence shows that there was a substantial
increase in the number of days of growing-season flooding
in the Management Area during the critical period be-
tween 1994 and 1998, compared to the period between
1953 and 1993. When compared to the period prior to the
construction of Clearwater Dam for which the record
contains data, the increase in the number of days of
growing-season flooding is even greater.
Although the government characterizes the increase
in flooding as only marginal, evidence in the record sup-
ports the trial court’s finding that the increase in flooding
was great enough to change the character of large parts of
the Management Area and interfere with the Commis-
sion’s ability to use the property in the manner it had
been used for many years. The trial court credited the
evidence that nuttall and overcup oak trees have limited
tolerance for lengthy flooding conditions during the grow-
ing season and that the lengthy flooding over multiple
years during the deviation period resulted in debilitation
and destruction of those trees.
The trial court credited the Commission’s evidence as
to the amount of the increase in flooding and its effect on
the trees in the Management Area. That evidence was
10 ARKANSAS GAME & FISH COMMISSION v. US
offered principally through the testimony and report of
the Commission’s expert, Dr. Mickey E. Heitmeier. By
reference to the number of days the water level was above
five feet, as measured by the Corning gauge a few miles
north of the Management Area, Dr. Heitmeier testified
that the number of days of growing-season flooding during
the years from 1994 to 1998 was more than 40 percent
higher than during the period after the construction of the
Clearwater Dam but before the deviations began. The
difference between the deviation period and the period
before the dam was built was even greater. Dr. Heitmeier
explained that the amount of flooding during the devia-
tion period was “highly unique” and that “six consecutive
years of prolonged flooding never happened prior, and has
never happened since.” Even one of the government’s
experts conceded that the deviations caused substantial
additional flooding in the Management Area.
The Commission’s experts testified that the devia-
tions—not rainfall, run-off, or other factors—caused the
flooding, and that the flooding—not insects, disease, or
forest age—caused the damage to the trees in the Man-
agement Area. The trial court was entitled to credit that
evidence and conclude, as it did, that the flooding during
the deviation period caused injury to the trees’ roots.
That damage made the trees abnormally susceptible to
the drought of 1999 and 2000, resulting in what the trial
court referred to as “catastrophic mortality in the sections
of the Management Area that were subject to flooding and
saturated soils during the growing seasons” during the
deviation period. 87 Fed. Cl. at 632.
Perhaps the most telling evidence in support of the
trial court’s finding of causation came from the Corps of
Engineers itself. After conducting a site visit in early
2001 and determining that the Management Area would
flood when the water level at the Corning gauge reached
six feet, the Corps admitted that the deviations had “clear
potential for damage to bottomland hardwoods” in the
ARKANSAS GAME & FISH COMMISSION v. US 11
Management Area. In response to the Commission’s
complaints that the flooding was destroying the hardwood
forest, a Corps representative stated that the Commission
“has objected in the past because they contend that we
increase the flood duration of hardwoods and kill more
trees this way, particularly during the growing season.
They now have a study that shows this and we
acknowledge the validity of their concerns.” The Corps’
district engineer explained that the deviations were ended
because they “would unacceptably extend the duration of
water inundation on bottomland hardwoods.” And at
public meetings during that period, the Corps admitted
that, based on its site visit in March 2001, the deviations
were “negatively impacting [the Management Area]
during [the] growing season.”
In sum, the evidence supports the trial court’s find-
ings that the deviations caused a substantial increase in
the periods of growing-season flooding in the Management
Area and that the flooding caused widespread damage to
the trees there. Those findings in turn support the trial
court’s legal conclusion that the deviations caused an
invasion, in the form of a temporary flowage easement, of
the property rights enjoyed by the Commission and its
predecessors since before the construction of the Clearwa-
ter Dam and until 1993. 2
2 Throughout this case, the parties have addressed
the takings issue by comparing the flooding experienced
under the 1953 Water Control Manual with the flooding
experienced under the deviations implemented between
1993 and 2000. At oral argument, the parties acknowl-
edged that in determining the scope of any invasion of
property rights, the proper comparison would be between
the flooding that occurred prior to the construction of
Clearwater Dam and the flooding that occurred during
the deviation period. The evidence showed that the
12 ARKANSAS GAME & FISH COMMISSION v. US
C. Foreseeability
The government next argues that the Corps of Engi-
neers did not intentionally flood the Management Area
and that the flooding that occurred between 1993 and
2000 was not a foreseeable result of the deviations that
the Corps approved during that period.
In order for a taking to occur, it is not necessary that
the government intend to invade the property owner’s
rights, as long as the invasion that occurred was “the
foreseeable or predictable result” of the government’s
actions. Moden v. United States, 404 F.3d 1335, 1343
(Fed. Cir. 2005); accord Ridge Line, Inc. v. United States,
346 F.3d 1346, 1357 (Fed. Cir. 2003). The trial court
found that the Corps of Engineers could have foreseen
that the series of deviations approved during the 1990s
would lead to substantially increased flooding of the
Management Area and, ultimately, to the loss of large
numbers of trees there. We uphold the court’s conclusion
as to that issue.
The court found that a reasonable investigation by the
Corps of Engineers prior to implementing the deviations
during the 1993-2000 period would have revealed that the
deviations would result in a significant increase in the
number of days of flooding in the Management Area
increase in the number of days of flooding during the
deviation period, as compared to the period prior to the
construction of Clearwater Dam for which the record
contains data, was even greater than the increase over
the 1953-1993 period. Because the water release policy
under the Manual largely mimicked the pre-dam water
flows, however, the parties’ choice to focus on the 1953-
1993 period as the baseline for determining the Commis-
sion’s property rights appears to have had no effect on the
outcome of this case.
ARKANSAS GAME & FISH COMMISSION v. US 13
during the growing season. That increase in flooding
would in turn result, after a few years, in injury to the
valuable trees in the hardwood forests there. When Corps
of Engineers personnel investigated the effect of the
deviations in 2001 as part of a proposal to make the
deviations permanent, they concluded that the new plan
could cause flooding for periods long enough “to damage
or destroy the trees” in the Management Area. Had the
Corps conducted such an investigation at the outset of the
deviation period, the trial court concluded, the Corps
would have come to the same conclusion. The court
therefore found that the flooding was foreseeable.
We need not reach the question whether the trial
court correctly found that the damages were foreseeable
from the beginning of the deviation period in 1993. In
addition to finding that the impact of the deviations was
foreseeable from the outset, the trial court found that
during the deviation period the Commission put the Corps
of Engineers on notice of the impact the deviations were
having. Starting in the spring of 1996, Commission
representatives complained that the lengthy periods of
flooding in the Management Area resulting from the
deviation policies were harming the timber resources
there, in particular the valuable oak trees in the bottom-
lands. Notwithstanding the complaints, the Corps con-
tinued approving the deviations through the growing
season of 2000.
From the evidence at trial, the Court of Federal
Claims found that the effects of flooding on hardwood
timber are cumulative: that nuttall oak trees are likely to
die when flooded for extended periods during three or
more growing seasons in a row and that overcup oak trees
are likely to die if exposed to such flooding for four or
more growing seasons in a row. Even setting aside the
trial court’s finding that the Corps of Engineers failed to
conduct a reasonable investigation of the likely effects of
the deviations on the Management Area at the outset of
14 ARKANSAS GAME & FISH COMMISSION v. US
the deviation period, the evidence indicates that the
Commission advised the Corps of the danger of damage to
the timber in the Management Area at a time when the
deviations had been in effect for only two growing sea-
sons, less than the period of time necessary to kill the
nuttall and overcup oaks.
To be sure, the Court of Federal Claims did not make
a specific finding that if the Corps of Engineers had
stopped the deviations in response to the Commission’s
complaints the trees would not have been damaged. That
may be because the government did not argue to the trial
court that the Commission’s complaints were insufficient
to put the Corps on notice of the effects of the flooding on
the Management Area or that the complaints came too
late for corrective action to have had any effect. Not
having made that argument to the trial court, the gov-
ernment cannot now contend that the court’s foreseeabil-
ity finding must be reversed because the Corps was not
apprised of the impact of the deviations at a time when
effective curative action could have been taken. 3 Accord-
3 In its original brief in this court, the government
argued, as it did in the trial court, that there was no
reason for the Corps of Engineers to foresee the damage to
the trees because “the best evidence before the [trial
court] even after the fact established that the deviations
had very little impact on flooding on the Wildlife Man-
agement Area.” However, the trial court’s findings on the
impact of the deviations were squarely to the contrary.
The government also argued that the Corps did not be-
lieve the deviations would substantially impact the Man-
agement Area. But that means only that the Corps did
not foresee the effects of the deviations, not that the
effects were unforeseeable. In its supplemental brief filed
on remand from the Supreme Court, the government
argued that the Commission’s complaints did not render
ARKANSAS GAME & FISH COMMISSION v. US 15
ingly, based on the evidence and the trial court’s factual
findings, we reject the government’s contention that the
trial court’s finding on the issue of foreseeability is un-
supported.
D. Severity
The government’s next contention is that even if the
increased flooding was a predictable result of the water
releases during the deviation period, the marginal in-
crease in flooding did not constitute a sufficiently severe
invasion of the Commission’s property rights to support a
takings claim. The government points out that the Man-
agement Area is part of a floodplain that floods regularly,
that the Commission itself sometimes floods parts of the
Management Area intentionally (for duck-hunting pur-
poses). In addition, the government notes that the Man-
agement Area has experienced flood-related damage in
the past, before the deviations of the 1990s. For those
reasons, the government argues, the Commission “could
not have expected either dry conditions or a healthy forest
ecosystem.”
Once again, the government’s argument runs head-
long into factual findings made by the trial court. While
it is true that the bottomland forests in the Management
Area were subject to flooding prior to the deviation period,
the flooding during the pre-deviation period, both prior to
and after the construction of Clearwater Dam, was con-
sistent with the maintenance of a thriving bottomland
hardwood forest and a wildlife and hunting preserve. The
the flooding foreseeable because the complaints “show
only what the Commission believed.” That argument
misses the point that the significance of the Commission’s
complaints for purposes of establishing foreseeability is
that they put the Corps on notice of the possible effects of
continued deviations.
16 ARKANSAS GAME & FISH COMMISSION v. US
point is not that there was flooding before the deviations;
the point is that after the deviations began the flooding
lasted for significantly longer periods of time and had
much more serious consequences than the flooding of the
pre-deviation period.
The trial court found that the change in the flooding
pattern effected a wholesale change in the ability of the
Management Area to support timber harvesting and a
wildlife preserve of the sort that the Commission had
historically maintained. See Jacobs v. United States, 290
U.S. 13, 16 (1933) (construction of a dam that produced an
incremental increase in flooding resulted in a taking
because the increased flooding “impaired the use of the
lands for agricultural purposes”). The Court of Federal
Claims addressed that point in detail, and the govern-
ment’s response—to downplay the extent and impact of
the increased length of the periods of flooding during
1993-2000—is not sufficient to overcome the trial court’s
contrary fact-based ruling.
In pressing its argument that the increase in flooding
was only incremental, the government seeks to distin-
guish between the intrusion, i.e., the additional flooding,
and the consequences of the intrusion for the hardwood
trees in the Management Area. The government contends
that the effect of the intrusion on the trees is irrelevant to
the question whether the governmental action itself
constituted a taking.
The distinction the government seeks to draw does
not help it in this case. This is not a case in which the
asserted intrusion was within a range that the property
owner could have reasonably expected to experience in the
natural course of things. To the contrary, the trial court
found that the lengthy periods of growing-season flooding
experienced in the Management Area between 1994 and
1998 were unprecedented and were clearly tied to the
deviations. Nor is it unreasonable to measure the severi-
ARKANSAS GAME & FISH COMMISSION v. US 17
ty of the interference with a property owner’s rights by
looking to the effects of the interference. In addressing
the severity issue, the Supreme Court characterized the
asserted interference with the Commission’s property
rights in this case as depriving the Commission “of the
customary use of the Management Area as a forest and
wildlife preserve.” 133 S. Ct. at 522. Indeed, it may often
be difficult to say, in the abstract, whether a particular
intrusion is severe or only incremental in nature; consid-
eration of the effects of the intrusion on the property
owner will often make that distinction easier to draw. In
this case, the Court of Federal Claims found that the
increased length of the periods of growing-season flooding
made the intrusion sufficiently severe to support a tak-
ings claim, and we see no basis to overturn the court’s
ruling on that issue.
E. Reasonable Investment-Backed Expectations
On remand, the government makes the related argu-
ment that because the Management Area is subject to
flooding, the Commission could not have had a reasonable
expectation that the Management Area would be free of
significant flooding during the growing seasons, and
therefore there was no taking. In effect, the government
contends that, because of preexisting conditions, the
Commission’s property interest does not include the right
to be free of artificially imposed excess flooding in the
Management Area. In making that argument, the gov-
ernment argues in its brief on remand that because the
Commission did not purchase the Management Area
property until after the Clearwater Dam was built and
the Manual went into effect, the Commission’s property
interest is necessarily qualified by the right of the Corps
of Engineers to authorize deviations from the ordinary
flowage rates at any time. The problem with that argu-
ment is that it was not raised in the Court of Federal
Claims. Also not raised below was the government’s
passing assertion on remand that under Arkansas water
18 ARKANSAS GAME & FISH COMMISSION v. US
rights law the Commission has no legal right against
flooding by an upstream property owner or operator.
Because neither argument was raised before the Court of
Federal Claims in the initial appeal in this case, we
decline to address either one. 4
III
Apart from its arguments on the merits of the takings
issue, the government raises two procedural points. First,
it contends that the trial court should have excluded the
Commission’s damages evidence because of spoliation of
certain documents that should have been produced in
discovery. Second, the government argues that the trial
court should have excluded certain appraisal evidence
because there was no reliable evidentiary basis for the
appraisal expert’s opinion.
A. Spoliation
The government asserts that the trial court should
not have admitted evidence from the Commission’s forest-
ry experts because the persons who conducted the surveys
of the dead and damaged trees in the Management Area
4 The government also suggests that a downstream
property owner’s interest in not being flooded by a flood
control project is different from an upstream owner’s
interest, because property downstream from a dam is not
occupied by the project but is the intended beneficiary of
the project, which is designed to reduce flooding impacts.
It may often be the case that a downstream property
owner is the beneficiary of a flood control project. That is
not true, however, when the project results in substantial-
ly increased flooding of one downstream owner’s property
due to efforts to benefit other downstream properties,
such as the agricultural lands that were the intended
beneficiaries of the deviations at issue in this case.
ARKANSAS GAME & FISH COMMISSION v. US 19
failed to preserve a set of hand-drawn maps that they
used while conducting the surveys.
The Commission contracted with a private firm,
which conducted timber surveys in 2000 and 2001 to
determine the extent of the timber damage in the Man-
agement Area. While they were working, the surveyors
prepared “cruise maps” to orient themselves in the field,
to determine the locations of access points and physical
features on the ground, and to keep track of the bounda-
ries of particular zones within the surveyed area. When
the surveys were completed, the surveyors either lost or
destroyed the cruise maps. The government argues that
without the cruise maps it was impossible to determine
whether specific tree damage was caused by flooding.
Armed with the cruise maps, the government asserts, it
could have determined whether the trees that were rec-
orded as dead or damaged were in areas of high ground
where they could not have been exposed to flooding or
were in areas of known beaver activity. Based on the
unavailability of the cruise maps, the government moved
to exclude testimony from the Commission’s forestry
experts. The trial court denied the motion.
The Commission argues that the cruise maps were
not producible both because the surveys were not con-
ducted in anticipation of litigation and because the maps
were not “facts or data considered by [an expert] witness”
in forming his opinion. Ct. Fed. Cl. R. 26(a)(2)(B)(ii). We
do not need to decide whether the cruise maps should
have been retained and produced to the government,
because we are persuaded that the loss of the cruise maps
did not result in substantial prejudice to the government.
See Ct. Fed. Cl. R. 37(c)(1).
The evidence at trial showed that the cruise maps
were created by copying the principal features of topo-
graphical or aerial maps onto ordinary sheets of paper to
be used as makeshift maps in the field to aid the survey-
20 ARKANSAS GAME & FISH COMMISSION v. US
ors in orienting themselves. The evidence further showed
that while the cruise maps could be used to determine
generally where the cruises were conducted, they could
not be used to determine accurately where particular tree-
damage data was gathered.
The actual cruise lines were marked with flags placed
in the ground for each plot. The evidence showed that it
would have been possible, for a period of several years
after the surveys were conducted, to determine where the
individual plots were located based on those flags and
other data provided with the survey report. Although this
litigation did not begin until 2005, the reports of the
timber survey were provided to the government beginning
in early 2001, so the government could have replicated
the cruises at that time if it had chosen to do so, at least
with the assistance of the Commission. Moreover, the
first report was accompanied by a demand for “financial
compensation for the dead and dying timber and recrea-
tional and land value losses,” so the government would
have had an incentive to challenge the findings in the
report, if it doubted them, as early as 2001. Beyond that,
the trial court found that it would have been possible for
the government to replicate the cruises, even years later,
based on deposition testimony from those who conducted
the surveys. As the court explained when denying the
government’s motion to exclude the cruise evidence, “as
long as one knew the direction of the cruise and the
starting point, those results could have been generally
replicated. And a deposition of either Mr. Livingston or
Mr. Foster produced that information. . . . [T]here is just
very little question . . . that developing a replicated cruise
was quite possible.” Tr. 2640.
The government, however, did not attempt to repli-
cate the surveys in order to test their accuracy, either
when it received the initial survey report in early 2001 or
during the course of the litigation. Nor did the govern-
ment use deposition testimony to test the accuracy of the
ARKANSAS GAME & FISH COMMISSION v. US 21
surveys, even though the depositions described the sur-
veys in substantial detail. The government did not even
depose several of the individuals who conducted the
cruises.
The principal use that the government claims it could
have made of the cruise maps would be to assist it in
replicating the cruises in support of its hypothesis that
the surveyors may have counted some dead or damaged
trees that were not damaged by flooding. Yet because the
government made no effort to replicate the cruises, it
could not establish either that replicating the survey
would have been possible with the cruise maps or that it
would have been impossible without them. Under those
circumstances, even if the cruise maps should have been
preserved, we conclude that the loss of those documents
did not prejudice the government’s ability to defend
against the Commission’s claims at trial.
B. Appraisal Expert
The government’s second evidentiary objection is that
the testimony of the Commission’s expert timber apprais-
er should have been excluded because there was no basis
for his opinions as to the percentage of declining trees
that would die within five years (50 percent) and the
value of the timber from declining trees that recovered
but in a degraded state (50 percent). In addressing those
estimates, the expert explained that they derived not from
any market data or scientific literature, but from his own
40 years of experience in the field studying and valuing
trees harvested for timber.
The government contends that the expert’s reliance on
his own experience as a basis for his estimates of the
mortality rate for declining trees and the reduced value of
timber from declining trees that survived did not render
his testimony sufficiently reliable to be admissible under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). We disagree. By their nature, appraisals are
22 ARKANSAS GAME & FISH COMMISSION v. US
often imprecise, and the appraiser’s experience can be the
most important factor in establishing valuation. See
Portland Natural Gas Transmission Sys. v. 19.2 Acres of
Land, 318 F.3d 279, 281 (1st Cir. 2003) (“[d]etermining
the value of real estate is not a science”). The Commis-
sion’s expert did not purport to be relying for his esti-
mates on data he had collected or scientific literature he
had examined. Instead, he acknowledged that his esti-
mates were based on his experience and observations of
trees over a 40-year career in forestry. The government
was free to challenge the expert’s estimates as unreliable,
or to introduce competing evidence as to the mortality
rates of the damaged trees and the value of the timber
produced from the degraded trees. In these circumstanc-
es, it was not an abuse of discretion for the trial court to
conclude that the government’s challenges to the expert’s
testimony went to the weight of the evidence, not its
admissibility, and to allow the expert to testify based on
his lengthy experience working in the field. See Libas,
Ltd. v. United States, 193 F.3d 1361, 1366 (Fed. Cir.
1999); United States v. 14.38 Acres of Land, 80 F.3d 1074,
1077 (5th Cir. 1996).
IV
In its cross-appeal, the Commission argues that the
trial court should have granted its request for additional
damages for regeneration of lands within the Manage-
ment Area where invasive wetland plant species were
able to gain a foothold due to the damage to the hardwood
timber forests.
The Commission sought an award of more than $2
million to remove undesirable, invasive vegetation that
the Commission contends established itself as a result of
the flooding of the Management Area during the 1990s.
In addition, it sought approximately $3 million to plant
oak seedlings to restore the bottomland hardwood system
to its pre-deviation-period condition.
ARKANSAS GAME & FISH COMMISSION v. US 23
The trial court found that the Commission had suf-
fered additional damages beyond the destruction of trees
as a result of the deviations during the 1993-2000 period,
and that the Commission was entitled to damages in the
amount necessary to eradicate the unwanted wetland
vegetation and to regenerate the hardwood forest. How-
ever, the court awarded only $176,428.34 in restoration
damages. The court found that the Commission had
proved its claim as to 349 of the 6,990 acres for which it
sought regeneration damages, but “has not proved that it
is entitled to recover all its projected regeneration costs
for the remaining 6,641 acres.” The 349 acres were those
for which the Commission had characterized the damage
to the timber as “severe.” The Commission characterized
the damage in the remaining 6,641 acres as “heavy” or
“moderate.” As to those areas, the court held that the
Commission “has not established to a reasonable certain-
ty the need for regeneration damages.”
The Commission advances three arguments in sup-
port of its position that it is entitled to damages for all
6,990 acres. First, it contends that the trial court imposed
an unduly heavy burden of proving damages to “a reason-
able certainty,” whereas a plaintiff bears only the less
exacting burden of proving a “fair and reasonable approx-
imation of the damages.” Bluebonnet Sav. Bank, F.S.B. v.
United States, 266 F.3d 1348, 1356-57 (Fed. Cir. 2001).
That argument, however, is based on a false dichotomy.
The principle that damages must be shown to a rea-
sonable certainty, which is borrowed from the law of
contract remedies, is not incompatible with the rule that a
plaintiff need not prove the precise amount of damages;
both principles require that the quantum of damages be
shown to a reasonable approximation. See Ind. Mich.
Power Co. v. United States, 422 F.3d 1369, 1373 (Fed. Cir.
2005) (damages must be shown “with reasonable certain-
ty,” but “the amount of damages need not be ‘ascertaina-
ble with absolute exactness or mathematical precision’”);
24 ARKANSAS GAME & FISH COMMISSION v. US
Precision Pine & Timber Co. v. United States, 596 F.3d
817, 833 (Fed. Cir. 2010) (evidence must be sufficient to
enable finder of fact to make a “fair and reasonable ap-
proximation” of damages; that is, a party seeking damag-
es must prove them with “reasonable certainty,” which
“requires more than a guess, but less than absolute ex-
actness”); Huntley v. United States, 135 F. Supp. 542, 546
(Ct. Cl. 1955) (“All that is required is such reasonable
certainty that damages may not be based wholly upon
speculation,” and “may be estimated with a fair degree of
accuracy.”).
Nothing in the trial court’s treatment of the regenera-
tion damages claim is inconsistent with that principle.
Moreover, unlike cases in which the courts have found a
“reasonable approximation” of damages to be sufficient to
justify an award, the problem that the trial court had
with the Commission’s proof did not go to the quantum of
damages; instead, it went to whether any compensable
loss at all was proved as to the sectors that the Commis-
sion identified as having suffered “heavy” and “moderate”
injury. As to those sectors, the court found that the
Commission had “not established to a reasonable certain-
ty the need for regeneration damages for the remaining
6,641 acres.” 87 Fed. Cl. at 645. The trial court properly
required the Commission to prove its entitlement to
regeneration damages for those sectors to a reasonable
certainty. See Fifth Third Bank v. United States, 518
F.3d 1368, 1379 (Fed. Cir. 2008) (rejecting claim that trial
court improperly applied the “reasonable certainty” test in
finding that a claim for lost profits was not established for
a particular period).
The Commission’s second argument is that the trial
court made improper use of information that the court
obtained on a site visit during the course of the trial. The
Commission complains that the court used its personal
observations of the Management Area as a basis for
denying relief for the portions of the Management Area
ARKANSAS GAME & FISH COMMISSION v. US 25
that the Commission alleged to have suffered “heavy” or
“moderate” damage.
The first answer to the Commission’s “site visit” ar-
gument is that the trial court made clear in its opinion
that it relied on the site visit only to “confirm[] that
discrete portions of the Management Area require regen-
eration work,” i.e., to confirm the Commission’s showing
with regard to the areas the Commission characterized as
“severely” damaged, not to rebut the Commission’s show-
ing with respect to the other areas. 87 Fed. Cl. at 644
(“Due to the site visit, the court was able to confirm the
pervasiveness of invasive wetland species and the scarcity
of oak trees in portions of the Management Area.”).
The second answer is that neither party objected to
the trial court’s proposal to conduct a site visit. Absent an
objection or insistence on some limitation on the court’s
use of information obtained during the site visit, the
Commission waived its right to object to the court’s use of
any relevant information obtained in that fashion. See
United States v. Davis, 127 F.3d 68, 70 (D.C. Cir. 1997).
Nor is there any force to the Commission’s suggestion that
its counsel could not have anticipated the use the court
would make of the information gathered on the site visit.
The court advised the parties that it was going to arrange
for the presence of a court reporter during the site visit
and added, “What I see and hear by way of facts are going
to be insofar as humanly possible spread on the record.”
Finally, the decision to conduct a site visit is a matter
that is subject to the discretion of the trial court. United
States v. Gray, 199 F.3d 547, 550 (1st Cir. 1999); 22
Charles Alan Wright & Kenneth W. Graham, Jr., Federal
Practice & Procedure § 5176.2, at 883-84 (2d ed. 2012).
Having conducted such a visit in the exercise of its discre-
tion and without objection from counsel, the court was
free to make use of its observations, to the extent rele-
vant, in its decision of the case. See Glassroth v. Moore,
26 ARKANSAS GAME & FISH COMMISSION v. US
335 F.3d 1282, 1289 (11th Cir. 2003) (“any kind of presen-
tation to the jury or the judge to help the fact finder
determine what the truth is and assimilate and under-
stand the evidence is itself evidence”); Gray, 199 F.3d at
550 (a site visit or view is “within the category of admissi-
ble evidence”); 2 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Federal Evidence § 403.07[4] (J. M. McLaugh-
lin ed. 2013) (“[T]he modern position is that the view does
provide independent evidence.”); cf. Snyder v. Massachu-
setts, 291 U.S. 97, 121 (1934) (the “inevitable effect [of a
site visit] is that of evidence, no matter what label the
judge may choose to give it”).
As its third argument in support of an enlargement of
its damages award, the Commission contends that the
evidence with regard to the portion of the Management
Area for which the trial court granted regeneration dam-
ages was not materially different from the evidence with
regard to the portions for which the trial court denied an
award. Accordingly, the Commission argues, the evidence
clearly indicated that artificial regeneration efforts will be
required not only for the 349 acres as to which the trial
court granted an award, but for the remaining 6,641 acres
as well.
In finding that the Commission had not shown the
need for regeneration damages for the remaining 6,641
acres, the court explained that the Commission “has
failed to submit adequate evidentiary materials regarding
certain areas where it seeks to recover regeneration costs
and the prevailing conditions in those places.” 87 Fed. Cl.
at 644. In particular, the court explained that in those
remaining 6,641 acres, there was “no basis in the record
to differentiate the areas that would require regenerative
work from others which retain some oak stands of signifi-
cance and which may well regenerate themselves.” Id. at
645.
ARKANSAS GAME & FISH COMMISSION v. US 27
The trial court did not commit clear error in finding
that the Commission failed to satisfy its burden of proof
with respect to the remaining 6,641 acres. The Commis-
sion argues that the invasive wetlands species, if not
removed, will impede the regeneration process throughout
the 6,990 acre area by depriving the new oak seedlings of
sunlight. The testimony from the Commission’s witness-
es, however, was not so categorical. Those witnesses
admitted that natural regeneration was occurring in some
areas and that many of the trees that had suffered dam-
age were showing signs of recovery. For example, the
Commission’s lead witness on regeneration acknowledged
that regeneration would occur without intervention in
many parts of the damaged areas, and he admitted that
he could not quantify how much of the 6,990 acres had
wetland species and how much did not. He testified that
he recommended regeneration measures be employed
throughout the entire 6,990-acre area “so that we’re
ensured the best possibilities of generating a like forest.”
In light of the evidentiary uncertainties as to the need
for artificial regeneration in the portions of the 6,990
acres where the damage was not “severe,” the trial court
was entitled to find the Commission’s theory insufficiently
supported with respect to the 6,641 acres of “heavy” and
“moderate” damage. We therefore affirm the trial court’s
judgment on the cross-appealed issue.
Each party shall bear its own costs for these appeals.
AFFIRMED